Christopher St. Louis v. Ottawa Police Services Board and Norma Couturier, 2012 HRTO 1316

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher St. Louis

Applicant

-and-

Ottawa Police Services Board and Norma Couturier

Respondents

DECISION

Adjudicator: Ian R. Mackenzie

Date: July 4, 2012

Citation: 2012 HRTO 1316

Indexed as: Louis v. Ottawa Police Services Board

APPEARANCES

Christopher St. Louis, Applicant

Chantal Tie, Counsel

Ottawa Police Services Board and Norma Couturier, Respondents

David Patacairk, Counsel

Introduction

1Christopher St. Louis filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to services on the basis of disability and race. The respondents raised an objection to the Application on the basis of timeliness. In a decision issued on May 7, 2012 (2012 HRTO 899) I determined that the Application was untimely.

2The applicant did not make submissions on whether it was appropriate for the Tribunal to exercise its discretion under subsection 34(2) of the Code to relieve against the time limit of one-year from the incident. I allowed the applicant and the respondents to make submissions on whether the delay had been incurred in good faith. The respondents stated that they waived their right to raise issues of substantial prejudice.

3The applicant and respondents provided submissions in writing. The applicant also provided an affidavit.

4The Application was filed on September 15, 2009.

5Subsection 34(2) of the Code states:

A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

Submissions

6The applicant stated that he was aware that Ms. Couturier was discriminating against him as an Aboriginal at the time of the seizure of his guns (in 2007). However, he was not aware that her conduct in not releasing the guns was motivated by her discriminatory beliefs about people with mental health problems. He submitted that it was not until he heard her testify at the judicial review hearing of the revocation of his gun licence (September 29, 2008) that he became aware of "her profound prejudice against me because of my previous mental health history". He also submitted that her testimony at the judicial review hearing showed that she relied upon discriminatory stereotypes: "it was clear to me when she testified, that she preferred her stereotypes, to the clear medical opinion of Dr. Mullin, that I was not a danger".

7The applicant submitted that the doctrine of discoverability was applicable in this case. This common law rule holds that a time limit will not start to run until the applicant has discovered, or ought with reasonable diligence to have discovered, the material facts upon which the cause of action is based – in this case, disability. The applicant stated that this doctrine of discoverability applies to all limitation periods (Brown v. University of Alberta Hospital, 1997 CanLII 14750 (AB QB), [1997] 4 W.W.R. 645 at para. 68). In M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, the Supreme Court of Canada stated that a cause of action does not accrue until the plaintiff is reasonably capable of discovering the wrongful nature of the defendant's acts and the nexus between those acts and his or her injuries.

8The applicant submitted that subsection 34(2) of the Code must be applied in a manner which gives full effect to the doctrine of discoverability. Very strong legislative language is required to displace the common law rule of discoverability and there is no such language in the Code, the applicant submitted. The applicant further submitted that the Tribunal has recognized that the doctrine of discoverability is an exception to the statutory limitation period: Reis v. Cintas, 2010 HRTO 2544. In Klein v. Toronto Zionist Council, 2009 HRTO 241(at para. 23) the Tribunal stated that the test is whether the applicant "later uncovered information that assisted her in discovering her potential case under the Code."

9The applicant submitted that the doctrine of discoverability should be applied to effectively extend the one year limitation period so that it runs from the date of the discovery of the discrimination. The applicant further submitted that where the doctrine of discoverability applies, the "good faith" requirement under subsection 34(2) of the Code can be inferred because of the nature of the explanation.

10The applicant submitted that since he only became aware of the discriminatory incident when Ms. Couturier testified on September 29, 2008, the application of the doctrine of discoverability would extend the time limit for filing the Application until September 28, 2009 (the Application was filed on September 15, 2009).

11The respondents submitted that I could not consider the doctrine of discoverability because I had already determined that the limitation period commenced in January 16, 2008. The respondents submitted that I was therefore functus officio (once a decision on an issue is reached, an adjudicator no longer has jurisdiction over the issue) with respect to the issue of the limitation period itself.

12The respondents also disagreed with the applicant's assertion that he was unaware that the respondents' alleged actions may have been made in relation to his mental health. The applicant's firearms were seized pursuant to the Firearms Act, under a provision that directly relates to the mental health of the firearm license holder. The applicant's doctor provided information related to his mental health to the respondents in November of 2007. The respondents submitted that it is disingenuous for the applicant to now claim that he was unaware that Ms. Couturier may have revoked his license for mental health reasons until September of 2008.

13The respondents submitted that the Tribunal was clear in the Klein decision that the discoverability doctrine does not exist to allow aggrieved persons to delay making a claim "in order to gather evidence that confirms their suspicions or buttresses their case" (at para. 23). The respondents submitted that in the present case, the applicant was well aware at all times that his firearms license was revoked for reasons related to his mental health. Ms. Couturier's testimony, at best, could only be viewed as an event used by the applicant to buttress his claim.

14The respondents submitted that the applicant has not demonstrated ongoing diligence in pursuing his Application. The respondents stated that in Mufata v. Ottawa Police Services Board, 2010 HRTO 814, the Tribunal determined that waiting six additional weeks following a court proceeding that the applicant relied on to establish good faith, did not demonstrate ongoing good faith. The respondents noted that in this case, the applicant is relying on the information he obtained on September 28, 2008, to justify good faith in the filing of his Application on September 15, 2009 – a period of approximately 350 days. The respondents stated that the applicant has provided no evidence or argument to explain the lengthy delay.

15The applicant submitted that the question now before me is whether the statutory time limits should be extended. As this issue has not been determined, the Tribunal is not functus officio.

16The applicant stated that the respondents have mischaracterized his submissions. Clearly, he knew that his license was revoked because of his mental health status. However, the applicant submitted, he did not know that this decision was based on Ms. Couturier's discriminatory stereotypes concerning people with a history of mental health treatment. The applicant submitted that the revocation of his license because of his mental health status is fundamentally different from learning that the revocation was done with discrimination.

Decision

17In the Interim Decision on this Application, I determined that the Application had not been filed within the one-year time limit set out in the Code. Since the applicant had not made submissions on whether the Tribunal should exercise its discretion to extend the time limit, I allowed the parties to make submissions on that issue.

18I do not accept the respondent's argument that I am no longer able to address the applicant's argument with regards to discoverability. Subsection 34(1) of the Code sets a time limit of one-year from the date of the incident (or the last in a series of incidents) that is alleged to be discriminatory. This is a purely objective test relating to the time of the incident. If an applicant is successful in establishing that he or she was not aware of an alleged discriminatory incident, the time limit for filing an application is not extended by one year from the date of discovery. Rather, the fact that the applicant alleges that he only discovered the alleged breach of the Code at a later date is considered by the Tribunal in determining whether the delay was incurred in good faith. This is consistent with the approach taken in other Tribunal decisions dealing with discoverability: for example, see Klein and Dionne v. Toronto (City), 2011 HRTO 317.

19In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25, the Tribunal made the following general comments about untimely applications:

…where an applicant seeks to establish that a delay in filing an application was "incurred" in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. … The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

20In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he did not pursue his rights under the Code in a timely manner.

21In this case, the applicant is relying on the fact that he was not aware of the underlying discriminatory reasons for the revocation of his license until he heard the testimony of the respondent Ms. Couturier in the judicial review application on September 28, 2008.

22The applicant's obligation to act "with all due diligence" is an ongoing obligation. Once he became aware of alleged discriminatory conduct on the part of Ms. Couturier, he was required to act with due diligence and promptly file an application, if he wished to pursue a human rights claim.

23In spite of receiving information on September 28, 2008 that he viewed as discriminatory, the applicant waited almost a further year (until September 15, 2009) to file his Application. In Mufata, the Tribunal noted that even if it was reasonable for the applicant to have waited for the withdrawal of criminal charges before filing an application, there was no explanation for the six-week delay after that event in filing his application. In this case, the applicant waited almost a year before filing his Application. In these circumstances I am not satisfied the applicant acted with due diligence in pursuing his claim.

24I find that the applicant has not met the onus on him to demonstrate that the delay in filing this Application was "incurred in good faith" as required under s. 34(2) of the Code.

25In light of the fact that the delay was not incurred in good faith, it is not necessary to make the further determination as to whether anyone has been substantially prejudiced by the delay: see Esanu v. Georgetown Men's Non-Contact Hockey League, 2009 HRTO 579. (As noted above, the respondent waived its right to make submissions on substantial prejudice.)

26Accordingly, the Application is dismissed.